United Food And Commercial Workers Union, Local No. 1439

30 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers Union ,Local No. 1439 and Joe Hagood and Rosauer's Super- markets, Inc. Cases 19-CB-4778, 19-CB-4772, and 19-CB-4797 9 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 20' January 1984 Administrative Law Judge Timothy D. Nelson issued the attached decision. The General Counsel and Charging Party Ro- sauer's filed exceptions and supporting briefs. The Board has considered the decision and the record in light of the exceptions and b_ riefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. - In substance, the complaint alleges that the Re- spondent represents employees in three units ' of Charging Party Rosauer's and the Respondent un- lawfully encouraged employees in two of those units, the "meat unit" and the "food unit," to honor the picket line of striking employees in the third unit. The judge found that the parties' meat unit con- tract's broad no-strike provisions did not encom- pass sympathy strikes, and that the food unit con- tract expressly allowed sympathy strikes. Addition- ally, although the Union also agreed in the food unit contract not to discipline employees for cross- ing picket lines, the judge found the Respondent's repudiation of the contractual no-discipline provi- sion was not an unfair labor practice. Therefore, the judge concluded that the Respondent lawfully threatened to discipline meat unit - and food. unit union members who refused to join a sympathy strike. For the following reasons, we reverse. The Respondent represents Rosauer's employees in separate delicatessen, meat, and food units. Each unit has its own contract. In April 1983 1 delicates- sen employees went on strike for 2 weeks. On 8 April the Respondent sent a letter to meat 'unit and food unit union members asking 'them not to cross the picket lines at Rosauer's, `-stating that failure to honor_ the lines' would violate the Respondent's -in- ternal rules and, render employees subject to "cen- sorship, fine, suspension;- and- expulsion;" and 're- minding them that members had' been fined $100 a day for crossing picket- lines during a previous strike. The Respondent later sent letters to about 70 food unit and` meat unit union members stating that fellow members had charged them with cross- ' All dates are in 1983 ing the picket lines and they could be disciplined if the Respondent's trial board found them guilty. Turning first to the meat unit contract, it states: 12.2 It is agreed that during the life of this Agreement there will be no strike by the Union . . . . Local 1439 agrees that during the life of this Agreement they will- not encourage or perform any picketing, boycotting, or hand- billing at the Employer's place of business. - 24.1 During the life of this Agreement there will be no strikes or other economic action by the Union, nor lockouts by the' Employer, unless the other party is refusing to comply with a final decision of an arbitrator Sympathy strikers - shall not be accorded any greater rights under the law or contract than the rights of a striking employee. In Indianapolis Power & Light Co., 273 NLRB 1715 (1985), we held that broad no-strike provi- sions' prohibit : all strikes, including sympathy strikes, unless the contract or extrinsic evidence es- tablishes the parties intended to except sympathy strikes from the prohibition. The. meat unit con- tract's no-strike provisions prohibit, inter alia, "picketing, boycotting, strikes, or other, economic action." Nothing in the contract suggests an intent to create an exception for sympathy strikes. Nor does the judge's discussion of the parties' bargain- ing history establish that the parties intended to ex- clude sympathy strikes. We therefore hold that the Respondent clearly and unmistakably waived meat unit employees' right to engage in -sympathy strikes. Accordingly, the Respondent Violated Sec- tion 8(b)(1)(A) by threatening to discipline mem-- bers who refused to participate in the sympathy, strike. - - With regard to the food unit, its contract con- tains broad no-strike language, but also states that-, "itI shall not be a cause for discharge by the Em- ployer or discipline • by the Union, and it shall not be a violation of the Agreement, for an employee to cross or refuse to cross a primary labor union picket line at the Employer's premises." We agree with the judge that the Respondent thus expressly agreed not to discipline food- unit employees for crossing the picket lines. Contrary to the judge, however, we find that the Respondent's repudi- ation of the no-discipline promise violates Section 8(b)(1)(A). In Operating Engineers Local 39 (San Jose Hospi- tal), 240 NLRB 1122 (1979), we discussed the cir- cumstances under which a union's discipline of or threat to discipline union members violates Section 8(b)(1)(A). We emphasized that the Act encourages 275 NLRB No. 7 FOOD & COMMERCIAL WORKERS LOCAL 1439 (ROSAUER'S SUPERMARKET) collective bargaining and peaceful resolution of labor disputes, that encouraging adherence to col- lective-bargaining agreements furthers these policy objectives, and permitting a union to discipline members despite contractual agreement not to do so would provide incentive to violate contracts. We held that the union's discipline of a union member in derogation of a negotiated strike amnesty agreement contravened the Act's policy objectives. We find San Jose and the instant case indistin- guishable.2 Here, the contract provides that the Union will not discipline employees who refuse to cross a picket line. By threatening to discipline members who failed to honor the delicatessen unit employees' picket line, the Respondent breached the no-discipline provision . Accordingly, we hold that the Respondent's threat to discipline members who refused to honor a picket line in disregard of its collective-bargaining agreement impairs con- gressional policy embedded in the labor laws in violation of Section 8(b)(1)(A). REMEDY Having found that the Respondent has violated Section 8(b)(1)(A) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, United Food and Commercial Workers Union, Local No. 1439, its officers, agents, and representatives, shall 1. Cease and desist from (a) Threatening to discipline union members who refused to join a sympathy strike in contravention of contractual no-strike provisions or a provision not to discipline sympathy strikers, contained re- spectively in the Respondent's contracts covering meat unit and food unit employees. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. 2 We are mystified by the judge's attempt to distinguish San Jose It is true that a strike amnesty agreement is retrospective and the instant no- discipline agreement is anticipatory We fail to see, however, why breach of a no-discipline provision contained in a collective-bargaining agree- ment does not implicate national labor policy favoring peaceful settle- ments of labor disputes 31 (a) Remove from the files of members who were threatened with discipline any reference to the un- lawful disciplinary threats and all related docu- ments, and notify each threatened member in writ- ing that it has done so. (b) Post at its business office copies of the at- tached notice marked "Appendix."3 Copies of this notice, on forms provided by the Regional Direc- tor for Region 19, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten to discipline members be- cause they refuse to honor our picket lines and par- ticipate in a sympathy strike, in contravention of our contractual promise not to discipline them for crossing the lines or in contravention of a contrac- tual no-strike agreement. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL remove from the files of members who were threatened with discipline any reference to our threats to take disciplinary action, including all documents relating to the threatened disciplinary proceedings, and WE WILL notify each threatened member in writing that this has been done. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL No. 1439 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. I heard this case in trial at Spokane, Washington,-on No- vember 9,. 1983.1 It arose from separate unfair labor practice charges which were filed by Rosauer's Super- markets, Inc (Rosauer's) in Cases 19-CB-4772 and 19- CA-4797 on April 19 and May 18, respectively, against United Food and Commercial Workers Union, Local No. 1439 (Union), and from a similar charge filed against the Union in Case 19-CB-4778-by' Joe Hagood on April 25. , . . After investigating the.charges, the Regional Director for Region 19 of the National Labor Relations Board (Board) issued an order consolidating cases and a con- solidated complaint and notice of hearing on July 19. The complaint alleges in substance that the Union repre- sents employees at Rosauer's in three separate bargaining units, that its employee members in two of those units were "prohibited from engaging in a work stoppage" by virtue of certain "no-strike" clauses in separate labor agreements, and that the Union nevertheless "encour- aged" those employee members to engage in "work stop- pages" and unlawfully "threatened" them with internal disciplinary action for failure to engage in "work stop- pages." The separate acts of "encouraging" and "threat- ening" those employees are each alleged to violate Sec- tion 8(b)(1)(A) of the _Adt, which, subject to certain "proviso" language, generally prohibits unions from "re- strain[ing] and coerc[ing]" employees in the exercise of rights guaranteed by the Act. The Union duly answered, admitting virtually every- thing alleged except conclusionary characterizations and allegations that the Act was violated by its admitted con- duct. Posttrial briefs were submitted by all parties except Charging Party Hagood, whose attorney argued orally at the close of trial proceedings. Issues As found. below, the Union admittedly encouraged certain employees of Rosauer's working in units covered by-currently effective labor agreements containing no- strike provisions to honor picket lines at-Rosauer's erect= ed in furtherance of the Union's lawful pnmary strike in a different unit of Rosauer's employees and the Union admittedly threatened discipline against employees for failing to honor the picket lines. Resolution of the allegations as they appear in the complaint turns 'on- whether the no-strike provisions in the effective labor agreements can be taken as waivers of employees' rights to honor their own union's lawful picketing in furtherance of a primary strike in a different unit of employees working for the same employer. A separate set of questions derives from the appear- ance that the General Counsel has shifted position with respect to the nature of the violation alleged to have been committed by the ' Union in its actions directed at one of the units of 'employees. Subject to further devel- I All dates hereafter are in 1983 unless otherwise indicated opment below, the questions in that latter case are- Is the alternative theory - of violation urged by the General Counsel barred from consideration because - the Union had no notice of it and, therefore,-no opportunity to fully and fairly litigate any defense to its And, if consideration of that theory is not barred, is it meritorious? Ori the entire record, including the parties' briefs, I make these FINDINGS OF FACT. I. BACKGROUND Rosauer's operates a chain of supermarkets in Spokane, Washington.2 The Union represents . employees of Ro- sauer's in three distinct bargaining units, hereafter called the delicatessen, meat, and food units. During all times which concern us, the food and meat units were covered by separate labor agreements containing certain no-strike language, set forth below; the delicatessen unit had no such contract. • II. ALLEGED UNFAIR LABOR PRACTICES Employees in the Delicatessen unit were engaged in an economic strike for a new labor agreement which lasted for 2 weeks in April. Dunng that period the Union mailed two separate letters to all members, including to employees in the meat and food units. In the first letter, dated April 8, the Union recited the bargaining history leading to the delicatessen strike and told members that they had "the right to support our fight by REFUSING TO CROSS OUR PICKET LINES" (emphasis in original). In addi- tion, the April 8 letter stated, in pertinent part. However,' if you should choose to ignore your re- sponsibility to us as fellow Local 1439 members, you should be aware that your actions violate [cer- tain identified provisions in International and Local Union constitution and bylaws] -These violations could subject you to disciplinary action, such as censorship, fine, suspension, and expulsion. In fact, during the last Local- 1439 grocery strike, members were fined $100 per day, for crossing the picket lines. On April 13, the Union sent followup letters to the same group. The April 13 letters contained a general his- tory of the labor dispute together with-appeals that its members honor the Union's picket lines. Those letters contained no- express reference to the possibility of disci- plinary penalties if members should fail to honor the picket lines. Thereafter, approximately 70 of the Union's members employed in the food and meat units at Rosauer's, in- cluding Charging Party Hagood, received letters from the Union advising them that they had been charged by a fellow member with "crossing and/or working behind" the picket lines Those letters further advised the recipi- 2 The Union admits and I find that Rosauer's had gross sales in excess of $500,000 in a recent 12-month representative period and that it pur- chased and received directly from outside Washington goods and materi- als worth more than $50,000 FOOD & COMMERCIAL WORKERS LOCAL 1439 (ROSAUER'S SUPERMARKET) ents of the pendency of internal trial proceedings, their rights in such proceedings, and their vulnerability to dis- ciplinary action should they be found guilty as charged. C. Pertinent Clauses-in the Labor Agreements Employees in the food unit were covered in April by a labor agreement containing these pertinent provisions: Article 24.3: There shall be no strike, lockout, or other economic action unless the other party is re- fusing to comply with the final Decision of an arbi- trator reached in accordance with the provisions of this Agreement. Article 28-No Strike and Lockout 28.1 During the life of the Agreement the Union agrees not to engage in any strike or stoppage of work and the Employer agrees not to engage in any lockout, except as provided for under paragraph 24.3, Article 24. Nevertheless, it shall not be a cause for discharge by the Employer or discipline by the Union, and it shall not be a violation of the Agree- ment, for an employee to cross or refuse to cross a primary labor union picket line at the Employer's premises that has been established to support a legal strike, provided the picket line is approved by Local 1439. Employees in the meat unit were covered in April by a labor agreement containing these pertinent provisions: 12.2 It is agreed that during the life of this Agree- ment there will be no strike by the Union or lock- outs by-the Employer unless the other party to the Agreement is refusing to comply with a final deci- sion of an arbitrator reached in accordance with the provisions of this Agreement. Local 1439 agrees that during the life of this Agreement they will not encourage or perform any picketing, boycotting,'or handbilling at the Employer's place of business. Article 24-No Strike and Lockout 24.1 During the life of this Agreement there will be no strikes or other economic action by the Union, nor lockouts by the Employer, unless the other party is refusing to comply with a final decision of an arbitrator reached in accordance with the provi- sions of this Agreement. Sympathy strikers shall not be accorded any greater rights under the law or contract than the rights of a striking employee. Further findings are reserved to the analysis section, next. III. FURTHER FINDINGS, ANALYSIS, AND CONCLUSIONS OF LAW A. General Legal Setting - Section 8(b)(1)(A) of the Act makes it unlawful for a union to "restrain or coerce . . . employees in the exer- cise of the rights guaranteed in section 7: Provided, That 33 this paragraph shall not impair the right of a labor orga- nization to prescribe its own rules with respect' to, the ac- quisition or retention of membership therein . . •. • " [Em- phasis added.] There is a tension between the affirmative proscrip- tions in Section 8(b)(1)(A) against union restraint and co- ercion of employees in the exercise of protected rights, and the rights retained by a union, as reflected in the above-quoted proviso, to make and enforce internal rules binding on its membership. Thus,-when a union imposes discipline on a member who works for an employer against whom the union has called a lawful- strike, such disciplinary action, however coercive of an employee/member's right under Section 7 to "refrain from" activities supportive of the union, does not gener- ally violate Section 8(b)(1)(A). Rather, it normally falls within the ambit of permissible discipline reserved to unions by the proviso. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967). Following the reasoning of Allis-Chalmers, the Court later -established in Scofield v. NLRB, 394 U.S. 423, 430 (1969), the general rule that Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects •a legitimate union interest, impairs no policy Congress has im- bedded in the labor laws, 'and is reasonably enforced against union members who are free to leave the union and escape the rule. Since Scofield, the Board has held consistently that a union violates Section 8(b)(1)(A) when it uses internal discipline to punish employee/members for failing to honor a picket line at their place of employment where to honor the picket line would result in a violation of contractual' "no-strike'_' commitments. The lead case is Mine Workers Local 12419 (National Grinding Wheel Co.), 176 NLRB 628 (1969). There, the Board adopted the Trial Examiner's conclusion that to allow a union to "penalize members for failing or refusing to participate in a violation of a no-strike clause is to provide an incentive to unions and members to violate contracts," a result judged to "run counter to a basic policy of the statute." Id. at 632. 'See also," e.g., Glaziers: Local 1162 (Tusco Glass), 177 NLRB 393 (1969); cf. Machinists Lodge 284 (Morton Salt Co.), 190 NLRB 208, 209 (1971) (distin- guishing National Grinding Wheel, supra, finding that union contract expressly permitted "sympathy" activity despite general no-strike clause, thus privileging union's discipline against members who failed to engage in sym- pathy work stoppage). From National Grinding Wheel and its progeny, it ap- pears that the resolution of this case will turn largely on the interpretation given to the no-strike and related lan- guage in the labor agreements quoted above, with the focus being on the question whether such language amounts to a waiver by the Union of the rights of em- ployees in the meat and food units to honor the Union's picket lines established in furtherance of a lawful primary 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike in the delicatessen unit.3 Before turning to such an analysis, however, it must be noted that the Board has been far less willing than it was when it decided National Grinding Wheel to infer from the mere existence of no- strike language in a labor agreement that the union in- tended to waive employees' rights to engage in sympathy strikes. See generally, e.g., Gary-Hobart Water Corp., 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423 U.S. 925 (1975) (sympathy strikes are protected by the Act and are subject to the general rule that a waiver of a statutory right must be "clear and un- mistakable" and "will not be readily inferred," id. 210 NLRB at 744-745). Accord. NLRB v. Southern Califor- nia Edison Co., 646 F.2d 1359, 1364-65 (9th Cir. 1981). See also Operating Engineers Local 18 (Davis-McKee), 238 NLRB 65,2 (1978). (Before a sympathy strike waiver will be found, the parties should "at the very least have dis- cussed the question, and preferably, have expressly em- bodied in their agreement their intent to extend a strike ban to sympathy strikes," id. at 653); Pacemaker Yacht Co., 253 NLRB 828 (1980). The Supreme Court has recently reaffirmed that statu- tory rights cannot be waived, except by "clear and un- mistakable" conduct. Metropolitan Edison Co. v. NLRB, 457 U.S. 1116 (1982). And the Court has also recognized that a sympathy strike is not normally directed at matters which are susceptible of resolution by arbitration proce- dures in a sympathy striker's union contract; thus general no-strike bans are not necessarily violated by employees who engage in a sympathy strike. Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976). Accordingly, while the holdings of Gary-Hobart and Davis-McKee, supra, will surely receive a re-examination by a newly constituted Board4 there is no reason to believe that the Board will seek to disturb the Court-affirmed "clear and unmistak- able waiver" test, nor the holding in Buffalo Forge, supra. And, in any case, the decision at this level may not rest on predictions about what changes might be wrought by a new Board majority. Coupling established analytical tests with additional findings below, I conclude that there was no waiver by the Union of the rights of employees in the meat and food units to honor the Union's picket lines in further- ance of the strike in the delicatessen unit and, according- ly, the Union did not violate Section 8(b)(1)(A) as al- leged in the complaint. I further conclude that the Union did not violate Section 8(b)(1)(A) under a separate, non- alleged, theory. B. Legality of Union's Actions Against Employees in the Meat Unit The issue here is relatively straightforward. There is a general no-strike provision in section 12 2 of the meat agreement. Under Davis-McKee and, e.g., Pacemaker Yachts, supra, such general no-strike language would not suffice to establish a "clear and unmistakable waiver" of 3 As I discuss below, the question is alternatively whether the Union's violation of a certain "no-discipline " clause in the food agreement was unlawful under Sec 8(b)(l)(A) 4 See, e g , dissent in Stevens Ready-Mix Concrete Corp, 263 NLRB 1280 (1982) the right of employees to engage in statutorily protected sympathy strike activity.5 The key question is whether the additional language in article 24, i.e., "Sympathy strikers shall not be accorded any greater rights under the law or contract than the rights of a striking employ- ee," amounts to a clear and unmistakable waiver of the statutory right of meat unit employees to honor the Union's delicatessen strike picket lines. I conclude, for the reasons set forth below, that such language does not, standing alone, clearly imply such a waiver; neither does the bargaining history relied on by the General Counsel adequately cure the patent ambigui- ty in the quoted phrase. I do not dwell on the conclusion that the clause is pa- tently ambiguous. Without more, it is impossible to know whether the parties intended that language to ban sympa- thy strikes or whether, for example, they merely intend- ed to memorialize Rosauer's right to permanently replace sympathy strikers to the same extent it had a right to permanently replace employees engaged in a primary economic strike.6 In short, the language in the "sympa- thy strikers" clause is not enough to support a finding that the Union clearly and unmistakably waived the rights of meat unit employees to honor the strike of their fellow employees in the delicatessen unit. Neither does the limited and conclusionary testimony of William Donohue, the employer spokesperson in- volved in first negotiating that clause, suffice to establish such a waiver. Donohue, currently the personnel manag- er for Rosauer's, testified generally about the bargaining history leading to the inclusion of the sympathy striker clause. His account is indirectly challenged on one point, but in its broad outlines, it is not disputed. The undisputed and credible features of Donohue's ac- count are as follows: The sympathy strikers clause first appeared in a labor agreement binding on the meat unit negotiated for the period 1978-1981 between a multiem- ployer group, Associated Industries of the Inland Empire, and Amalgamated Meatcutters Union Local 494. Rosauer's was then, and still is, a member of Associated Industries. Donohue was then Associated's bargaining spokesperson. Meatcutters Local 494 was then an auton- 5 Neither is it relevant to this decision that the same contract section contains a commitment by the Union during the life of the agreement not to "encourage or perform any picketing at the employer's place of business " That clause is clearly coterminous with, and the quid pro quo for, the arbitration procedure mentioned in the same section Teamsters v Lucas Flour Co, 369 U S 95 (1962) Accordingly, it was not breached by the Union's picketing at Rosauer's aimed at obtaining a contract for em- ployees in the delicatessen unit, a dispute which was not arbitrable under the meat agreement The Union was thus free to picket Rosauer's in fur- therance of the delicatessen strike, despite the no-picketing commitment in the meat agreement Buffalo Forge, supra, cf Boys Markets v Retail Clerks Local 770, 398 U S 235 (1970) 6 This latter interpretation is the one which Sean Harrigan, the Union's current president, credibly testified he has always held Nothing in this record suggests that Harrigan was on notice of a contrary interpretation, although he was personally involved in negotiations leading to adoption of that language in some of the Union's contracts (but not the negotia- tions leading to the adoption of that clause in contracts governing the meat unit) It does not really matter here whether Harrigan was sincere or self-serving in thus expressing his subjective interpretation in response to questioning by counsel for Charging Party Hagood The point is that it is not an untenable interpretation FOOD & COMMERCIAL WORKERS LOCAL 1439 (ROSAUER'S SUPERMARKET) omous bargaining agent for the meat unit7 and was rep- resented by its then secretary-treasurer, Ed Cozzetto. As- sociated first presented a package of demands which in- cluded what Donohue termed "a much more compre- hensive proposal" which met with opposition from Coz- zetto. This is the text of that proposal, with emphasis added: Section 17. No strike and lockout Revise to read as follows. During the life of this Agreement, there shall be no work stoppages, strikes, slowdowns or other economic actions by the Union, nor- lockouts by the Employer for any reason or cause whatsoever. No picket line at or around the Company's place of business established by any other person or organization shall be sanc- tioned or honored during the term of this Agree- ment. The Union agrees that as part of the consider- ation of this Agreement, it will, within twenty-four (24) hours take steps to end any unauthorized work stoppages, strikes, slowdowns or suspensions of work, and shall notify its members by any media normally used by the Union, of such violation of this Agreement, instructing members to work imme- diately. The Union agrees that it will not assist em- ployees participating in such unauthorized work stoppages, strikes, slowdowns or suspension of work against whatever action the Company may take as a disciplinary measure. This does not prevent the Union from utilizing the grievance procedure in behalf of an employee who claims that he, in fact, did not participate in such actions. After being rebuffed in its opening proposal, Donohue testified, the employer group finally submitted as part of their "final offer," the revised language quoted earlier, which included the "sympathy strikers" clause. Donohue further claimed generally that at some unspecified period during negotiations (whether before or after presenting its "final proposal" is simply not clear) that "We kept telling him [Cozzetto] that the only thing that employers could get out of a contract basically is labor peace . . . and what we wanted to do-we did have no-strike lan- guage in the contract but we also wanted to expand that to sympathy strikers." I find such summary testimony to be inherently suspicious and inadequate due to its vague and general quality.8 Its reliability or relevance to the ' A subsequent merger of International unions created the United Food and Commercial Workers Union, and a parallel merger of separate locals created the Union as the present exclusive representative of em- ployees in the meat unit 6 I have a similar, but even stronger reaction to Donohue's surprising refinement of his testimony when recalled by the General Counsel to rebut a different point In the course of that testimony, Donohue claimed generally, "We told [union spokesman Cozzetto] and his committee across the table that the language we were putting in would prohibit sympathy strikers " Donohue's manner suggested here that he was merely polishing earlier testimony and was not truly recalling some unre- ported specific exchange addressed to the specific sympathy striker lan- guage I would not credit such testimony insofar as it suggests the latter Neither does the General Counsel rely on Donohue's version of 1978 events as it became embellished by his testimony at the rebuttal stage Indeed, the General Counsel acknowledged on brief that Donohue's testi- mony about the "bargaining history" is "somewhat sketchy" and that 35 outcome is further undermined by additional consider- ations discussed next. I note first with respect to Donohue's "more compre- hensive proposal" that it does not contain any reference whatsoever to sympathy strikers; rather, it contains gen- eral prohibitions against a variety of forms of "economic action" and a prohibition against Local 1439's "sanc- tion[ing] or honor[ing]" of picket lines established by "any other person or organization" (emphasis added). To that extent, even the rejected opening proposal of the employer group could not be taken to address the ques- tion presented here, i.e., whether employees could honor picket lines lawfully established by their own union at Rosauer's . And it is, therefore, even less likely that the ultimate, agreed-upon language was intended to ban sym- pathy activity in support of a strike conducted by the same union. It cannot be determined with any certainty from Don- ohue's testimony whether the employer group' s alleged determination to "expand" the no-strike commitment to sympathy strikers was expressed before, during, or after the presentation of the "alternative" language which found its way into the 1978-1981 agreement. Indeed, there is no indication of any kind that there was any con- scious exploration or discussion of the sympathy strikers clause once it appeared in the context of an overall final proposal. The General Counsel aptly charactenzes Don- ohue's testimony about the bargaining history as being "somewhat sketchy." But it was the General Counsel's burden in introducing such "collateral evidence of con- tractual intent" to show "clearly and unequivocally .. . that the union understood and intended said [sympathy striker] language to waive or limit the statutory right." 9 And that burden is simply not met by vague testimony that the employer group said at some point to the union spokesman that it was their overall desire to "expand" the no-strike clause to "sympathy strikers." 10 "[T]here was no specific discussion as to the meaning of that [sympathy striker] clause" (emphasis added) Taken literally, however, Donohue's testimony would be evidence of exactly the kind of "specific discussion" which the General Counsel concedes was lacking It is apparent therefore that the General Counsel would not give Donohue's ultimate testimony on rebuttal any greater literal credence than I would give it And see dis- cussion below about other factors tending to detract from Donohue's overall testimony about the 1978 negotiations with the Meatcutters 9 Keller-Crescent Co, 217 NLRB 685, 687 (1975) 10 Contrary to the General Counsel's contention on brief, no inference adverse to the Union may be drawn in these circumstances from its fail- ure to call former Meatcutters Local 497 Representative Cozzetto as a witness In the first instance, it was not the Union's burden to show that it did not waive employees' rights to honor its strikes in sister units Thus, the Union's failure to call any witness about the bargaining history does not suffice to supply the evidence which was lacking in the General Counsel's presentation More fundamentally, the Union's counsel repre- sented without contradiction that "the individuals . that did the [1978 Meatcutters] negotiations are no longer with the Union " The Board will not draw an adverse inference from a party's failure to call a former agent over whom it no longer has any control The failure to call such "neutral, nonparties" (Levingston Shipbuilding Co, 249 NLRB 1, 11 (1980)) warrants no adverse inference, rather such "missing witnesses" are treated as being "equally available" to all parties Id See also O'Do- vero Construction, 264 NLRB 751 fn 1 (1982), and authorities cited Cf. Martin Luther King Sr. Nursing Center, 231 NLRB 15 (1977), Earle Indus- tries, 260 NLRB 1128 (1982) 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A final consideration which militates against reliance on Donohue's testimony for a finding that the Meatcut- ters consciously waived employees' rights to honor lawful strikes called by the same union in different units of employees of the same employer is the fact, as I find, that Donohue had a different interpretation of the "sym- pathy striker" language when he presented it in 1978 for adoption in a different set of negotiations with another of the Union's predecessor locals The Union's current president, Harrigan, was then president of a Richland, Washington local of the former Retail Clerks International Association. Harrigan ciedi- bly testified without contradiction by Donohue as fol- lows: Donohue presented the same "sympathy striker" language for inclusion in the labor agreement then under negotiation between Harrigan's local and employers rep- resented by Associated Industries of the Inland Empire. i i Donohue's proposal came near the end of the negotiations and Harrigan was moved to ask Donohue "what the intent ^ of the proposal was." Donohue said that he did not know but that one of the employers, Al- bertsons, was "very, very desirous of this clause being added to the agreement." This caused Harrigan to -ask Donohue whether the new clause would "change the in- terpretation or application of the no-strike clause that ex- isted." Donohue replied that it would not. Accepting Harrigan's credibly stated and,undenied tes- timony on this point as true, I find it even more unlikely that Donohue would-have expressly communicated a vir- tually opposite message to Cozzetto and the, Spokane Meatcutters during negotiations in the same period. I thus conclude that Donohue's testimony is insufficient to reliably ground a finding that the Meatcutters conscious- ly explored-and then yielded-the right of meat em- ployees to honor, lawful picket lines erected by that union at their own place of employment. I would thus dismiss the complaint insofar as it is grounded on a con trary view. C. Legality of Union's Actions Against Employees in the Food Unit It must be 'recalled here that the complaint alleges, without discriminating between meat and food unit, em- ployees, that the Union unlawfully encouraged picket line observances and unlawfully threatened disciplinary action against employees "who were prohibited from en- gaging in a work stoppage by a no-strike clause con- tained in collective-bargaining agreements." At least with respect to the food unit, however, the proof contradicted the quoted allegation and the complaint therefore has not been sustained insofar as it depends on the existence of a contractual "prohibition" against participation by food, unit employees in the kinds of sympathy strike activities which the Union admittedly tried to promote.- For a review of the quoted provisions in the food agreement reveals that while that contract contains a general no'- strike prohibition, it -also, states unambiguously that "it shall 'not be a'violation of the Agreement, for an employ- L i These negotiations occurred at a-point in time close to the 1978 ne- gotiations between Associated and the Spokane Meatcutters, neither Har- rigan nor Donohue recalled which set of negotiations 'preceded the other ee . . . to refuse to cross a primary labor union picket line at the Employer's premises that has been established to support a legal strike, provided the picket line is ap- proved by Local 1439." Since the food agreement expressly allows food unit employees to refuse to cross picket lines of the type pre- sented by the Union's picketing at Rosauer's in support of its delicatessen strike, it was plainly not a violation of Section 8(b)(1)(A) • under the- theory='imbedded= in L the complaint for the Union to encourage food unit employ- ees to observe its picket lines and to discipline them for failure to honor the picket lines Morton Salt, 198 NLRB 208 (l972):12 On brief, however, the General Counsel abandons any contention that employees in the Food unit were "pro- hibited" by the applicable labor agreement from engag- ing in sympathy work stoppages. Instead, in a seeming shifting of theory, the General Counsel claims that the Union's admitted actions violated that portion of the food agreement which states- "it shall not be'a cause for discharge' by the Employer or discipline by the Union . . . for an employee to cross or refuse to -cross a primary picket line" (emphasis added). On this record, it is doubtful that' the Union ever re- ceived any effective notice that it was being charged with an 8(b)(1)(A) violation based on an alleged direct breach of a contractual "no-discipline" clause. As noted, the complaint is grounded in the false supposition that the employees in the food unit were "prohibited" from honoring the delicatessen strike picket line. And the dif- ference between the two theories of violation (threats of discipline in breach of a no-discipline clause as opposed to discipline having the effect of causing a breach by em- ployees of a no-strike clause) is not merely superficial. Particularly in a case like this, the choice of theory de- termines the focus of litigation If the gravamen of the complaint as to the food unit is that employees were "prohibited" from. engaging in the.sympathy strike activ- ity which the Union's conduct admittedly sought to induce then the question for litigation would be whether the contract could be interpreted to ban such sympathy activity. -If,, on the other hand. (and contrary to the 12 In any case, it is not a violation-of Sec 8(6)(1)(A) merely to "en- courage" employees to do something which their labor agreement might prohibit Sec 8(b)(1)(A) outlaws only a union's acts to "restrain or coerce" employees in the exercise of protected rights and mere "encour- agement" does not satisfy the test See generally NLRB Y -Teamsters Local 639 (Curtis Bros),,362 US 274, 282 (1960) The General Counsel advances no direct authority for the contrary proposition Rather his ar- gument appears to assume from dicta in National Grinding Wheel, 176 NLRB 628, and its progeny, that since "national policy" favors the ob- servance of labor'agreements, it must follow that any attemptby a union to "encourage", employees to disregard or dishonor a particular contract clause will automatically violate Sec 8(b)(1)(A) This argument,, howev- er, stretches the National Grinding Wheel rationale far beyond its,tensile limits and its acceptance would ultimately -result in a collision with an- other established doctrine in labor laws, that it is not, per-se, a violation of the Act to have committed a "mere" breach of contractual terms See, e g, NLRB0 C & C Plywood Corp, 385 US 421, 427 -(1967), United Telephone Co, 112 NLRB 779, 781 (1955) ("The Board is not the proper forum for parties seeking to remedy an alleged breach of contract ") See also Textron Puerto Rico, 107 NLRB 583, 588 (1953), Danner Press, Inc, 153 NLRB 1092, 1107-09 (1965), Whiting Roll Up Door Mfg Co, 257 NLRB 734 fn 2 (1981) And see discussion, infra - - FOOD & COMMERCIAL WORKERS LOCAL 1439 (ROSAUER'S SUPERMARKET) choice of language in the complaint) the "real" basis for prosecution was that the Union violated a no-discipline clause,,. then litigation would necessarily focus on the meaning and scope of that clause. There was-no litigation at all about the meaning of any language in the food unit agreement; i.e., no litigation over salient bargaining history and other factors poten- tially material to • a determination under either theory of violation .And twhere, the complaint _was grounded on a theory which was • manifestly -without support in the union contract, it is not-surprising that the Union did not choose to come forward with any exculpatory evidence, for the General Counsel's -apparent theory of violation was never supported by prima facie evidence-indeed it was contradicted by the only proof introduced on the subject, i.e. -the language in the food unit agreement itself. I am thus satisfied that the complaint gave no notice of the theory now relied on by the General Counsel as to violations affecting employees in the food unit; indeed, it is'clear that the'complaint derived from an entirely dif- ferent theory; one which the Uriion'was never compelled to come-forward to defend against because the complaint theory-was contradicted by the General Counsel's own proof. - The question remains, however, whether the facts un- derlying the General Counsel's current theory were sub- jecf to "full and fair litigation." If so, a violation may be found despite the lack of actual notice of such a theory. See, e.g., NLRB v. Olympic Medical Corp., 608 F.2d 762, 763 (9th Cir. 1979); Clear Pine Mouldings v. NLRB, 632 F.2d 721, 728 (9th Cir. • 1980). " If not, respect ,for the Union's constitutional right to due process - would bar consideration of the theory. See, e.g., ^ Jim's Big M., 264 NLRB 1124 (1982); Camay Drilling Co., 254 NLRB 239, 240 fn. 9 (1981). See also Kraft Foods, 251 NLRB 598-fn: 4 (1980). Answering this question is made easier by the Union's concession ,on brief as to the food unit agreement that "The language is clear that the union agrees not to disci- pline employees who cross the.picket line-."13 Because it, is not contested by the Union that the language, relied on by the General Counsel under his current theory of vio- lation means essentially what the General Counsel says it means, I conclude that there was nothing more,to litigate and that the Union is not prejudiced by consideration of that theory, despite the fact that it is not encompassed by the pleadings. On -the merits, the Union's concession quoted above and the language of the pertinent clause itself dictate the: conclusion that the parties have-negotiated what amounts to a mutual promise not to discipline food unit employ- ees for choosing Ito cross or not to cross a union=en- dorsed picket line at Rosauer's. There is also no question that by threatening food unit employees with, discipline for crossing such picket lines during the delicatessen '' This concession is made in the context of what might be called a - secondary defense to the complaint-the Union's primary defense being that the quoted language "specifically excludes sympathy strikers from the no-strike language " 37 strike, the Union has at least anticipatorily breached, the no-discipline clause.14 The issue then becomes whether this admitted antici- patory contract breach by the Union is sufficient to per- fect a violation of Sec. 8(b)(1)(A) The General Counsel claims that it is. In support, he cites broad policy consid- erations invoked by the Board in Stationary Engineers Local 39 (San Jose Hospital), 240 NLRB 1122 (1979). As I discuss further below, that case is not strictly applica- ble to the present case because, unlike herein, .San Jose Hospital invoked the breach of an "amnesty" agreement reached as part of a strike settlement. 15 Apparently.rec- ognizing the factual distinction; the General Counsel argues that the policy considerations are the same. And the General. Counsel's legal theory of violation in this case rests finally on this set of broad, policy-linked asser- tions: In the instant 'case, Respondent's conduct .with.re- spect to the , Food employees who crossed the -picket line was clearly in contravention of the col- lective bargaining agreement. The threat of disci- pline was in opposition to the basic policies of the Act in promoting industrial stability. Accordingly, Respondent's disregard for the provisions of its col- lective-bargaining agreement impairs the basic labor policy of the nation as set, forth in the Act. • . I return to these "national labor policy"-linked argu- ments after an examination of the holding in the "strike amnesty" cases. As noted earlier, there is one obvious factual difference between this case and the cited amnes- ty cases, namely, that the amnesty cases involve agree- ments negotiated. as part of a strike settlement. Here, by contrast, there is no evidence that the no-discipline clause owed its existence to strike-settlement bargaining. The distinction may appear at first glance to be trivial, but as I show next, it cannot be ignored except by dis- counting, the importance of the "policy" distinctions un- derlying the Board's decision in San Jose Hospital, supra, the lead case in this area. In San Jose Hospital, the' Board stated -generally that "it is the express and fundamental policy of, the Act to encourage the practice ' and procedure of collective bar- gaining as an important means for achieving industrial peace and stability." Id. at 1124. From this "express and fundamental policy," the Board derived an implicit cor- ollary doctrine, that "furtherance'of this policy necessari- 1y includes' the 'encouraging' of adherence to the provi- sions 'of' collective-bargaining agreements." The- Board did not rest- on' that' ground, however: The Board also said that the union's breach' of the amnesty agreement implicated yet another distinct national policy, specifical- ly, that its breach of a "strike 'amnesty agreement run[s] counter to the overiidingtnational policy of•favoring'the peaceful resolution of labor disputes."' Ibid. i4 The record does not indicate that the Unioii has pressed beyond the issuance of threats of discipline is And see Hospital & Institutional Workers Union Local 250 (Dameron Hospital), 248 NLRB, 1390 (1980), another "strike amnesty" case applying the rationale set forth in San Jose Hospital 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, the Board rested its decision in San Jose Hospi- tal on its judgment that the union's breach of a strike am- nesty clause ran afoul of two distinct (although only im- plicit) national labor policies; first, a general policy of "encouraging adherence to . . . collective bargaining agreements," and second, a policy "favoring the peaceful resolution of labor disputes." I have found no evidence to justify the conclusion that the no-discipline provision in the food unit agreement was reached as part of some strike amnesty arrangement. I must therefore conclude that the policy "favoring peaceful resolution of labor dis- putes" is not obviously undermined by the Union's con- ceded breach of the no-discipline provision. We thus return to the question whether the Union's breach of the contractual no-discipline provision is, by that fact alone, enough to perfect an 8(b)(1)(A) violation on the ground that such conduct violates the policy of "encouraging adherence to . . . collective bargaining agreements." Despite the Board's invocation of that policy in San Jose Hospital, prudence and a decent re- spect for that opinion suggest that a contract breach by the union was not in itself enough to ground a finding of violation. To say otherwise is to imply that it did not really matter to the San Jose Hospital Board that the union in that case had also acted to undermine a strike settlement agreement. And that is tantamount to saying that the Board simply threw in the latter rationale as makeweight. Accordingly, the General Counsel's syllo- gism (national policy favors adherence to union con- tracts; the Union broke the no-discipline clause; therefore Section 8(b)(1)(A) was violated), while attractively simple, does not follow from the Board's holding in San Jose Hospital. Moreover, in an area of the law in which the rationale for a claimed violation is grounded finally on supposi- tions about "national policy," one must exercise special caution. For "[public policy] is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail." Richard- son v. Mellish, 130 Eng. Rep. 294, 303 (1824) BURROUGH, J. quoted in Feld & Sons, Inc. v. Pechner, 112 LRRM 3337, 3340 (Pennsylvania Superior Court, 1983). It is also clear that a "national policy" of encouraging adherence to labor agreements is, by itself, of limited pertinence to the Board's role in deciding unfair labor practice cases. Thus, the Court has said: "Congress de- termined that the Board should not have general jurisdic- tion over all alleged violations of collective bargaining agreements . . . a principle which this Court has already recognized." NLRB v. C & C Plywood, 385 U.S. at 427; and see cases at fn. 10. Just as clearly (and contrary to the overbroad generalizations made by the General Counsel quoted above), the legality under the Act of particular conduct does not normally turn on whether or not that conduct tends to promote or detract from a state of "industrial stability"-a phrase of uncertain definition in any case. Strikes, including sympathy strikes, are manifestly productive of industrial instability ; yet the Court has unmistakably and in a variety of contexts hewed to the view that striking was the subject of "re- peated solicitude" by Congress. NLRB v. Erie Resistor Corp., 373 U.S. 221, 233 ( 1963). See also Buffalo Forge Co. v. Steelworkers: "There is no general federal anti- strike policy; . . . a suit may be brought under Sec. 301 against strikes which, while they are breaches of private contracts, do not threaten any additional public policy." (428 U.S. at 409, emphasis added.) See also Curtis Bros., 362 U.S. at 282. Thus, it simply does not follow that a contract breach-even one involving a breach of a no- strike provision which disturbs "industrial stability"-is necessarily something which "threatens . . . additional public policy." In summary, it is not enough to say that because the Union broke the no-discipline clause in the food unit agreement, it thereby violated Section 8(b)(1)(A). Nei- ther does the Board's holding in San Jose Hospital re- quire a finding of an 8 (b)(1)(A) violation in this case; for that case expressly relied on two policy considerations, one of which is not clearly implicated by the Union's conduct here. I would not extend that "policy"-bound holding to this novel fact situation absent clearer guid- ance from the Board ; especially when to do so would risk a collision with equally well-established "policies" favoring the use of forums other than the Board for rem- edying breaches of the labor agreement. I would therefore dismiss the complaint in this respect as well. I thus reach these ultimate: CONCLUSIONS OF LAW 1. Rosauer's is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Board's jurisdiction is properly invoked herein where the Union's complained-of actions affected em- ployees of Rosauer's, an employer engaged in commerce. 4. The Union did not violate Section 8(b)(1)(A) of the Act when it encouraged employees of Rosauer's em- ployed in the food and meat units to honor picket lines erected at Rosauer's in furtherance of a lawful primary dispute over contract terms for the delicatessen unit. Nei- ther did the Union violate that section when it threat- ened to impose disciplinary penalties against Rosauer's employees in the meat and food units for failing to honor those picket lines. [Recommended Order omitted from publication.]